Canteen Crasher: FWC warns against employer’s “concerning” performance management in stop-bullying application

The stop-bullying provisions of the Fair Work Act 2009 (Cth) (FW Act) provide a mechanism for the Fair Work Commission (FWC) to impose orders upon employers (as well as individual employees) which are aimed at stopping bullying behaviour in the workplace.

In applications for orders to stop bullying, the conduct of an employer will not constitute bullying under section 789D of the FW Act if it can be shown that the particular conduct was “reasonable management action carried out in a reasonable manner”.

If such management action is not reasonable and/or not carried out in a reasonable manner, it may be considered bullying behaviour under the FW Act.

In the recent decision of Ogden v Royal Australian Central Canteens Board T/A Navy Canteens, McAndrew, Richards [2022] FWC 775, the FWC was required to consider whether or not an employer’s performance management process amounted to bullying behaviour which warranted stop-bullying orders.

The employee worked as a Food and Beverage Attendant at canteens operated by the Royal Australian Canteens Board (the Employer).

The performance management process was commenced by the Employer following a series of complaints made between August 2020 and March 2021 by the employee about the Regional Manager and her co-workers as well as complaints made by the employee’s co-workers about the employee’s behaviour.

One particular complaint was made in January 2021 by the employee to the Regional Manager that her co-worker had, amongst other interactions, made cat noises at her and also suggested that “she just needs a good hard root”.

Following receipt of this complaint, the Regional Manager suggested to the Human Resources Manager that the Employer finalise the employee’s employment immediately as he believed that attempts to relocate her to a new base would not improve the situation.

Despite this suggestion, the Employer moved the employee to five other locations. However, the Employer received further complaints about the Applicant’s behaviour from her work colleagues and, in March 2021, it determined to commence a performance review process in relation to the Applicant’s behaviour.

During the course of that process, the employee was invited to respond to the concerns raised by her co-workers. The employee denied the behaviour and described issues reflecting potential communication, training and protocol problems that she was experiencing at work.

However, the Employer considered those issues to not be relevant. It advised the employee that they would be discussed at another time and concluded that the employee should take the complaints seriously and be mindful of her interactions moving forward.

The employee subsequently made a claim for workers compensation in relation to what she considered to be bullying behaviour by the Regional Manager and, as at the time of making her stop bullying application in September 2021, remained off work.

In her submissions, the employee identified five incidents which she considered repeated bullying behaviour:

  1. The conduct of her Regional Manager in August 2020 in which he slammed the boot of her car, causing her to feel upset and intimidated;
  2. The public humiliation from being called to a meeting by the Employer and Regional Manager in January 2021 and the failure of the Regional Manager in addressing her complaint;
  3. The email from the Regional Manager in January 2021 suggesting the termination of her employment;
  4. The lack of procedural fairness provided to her in the performance management meeting in January 2021; and
  5. Inappropriate comments made by the Regional Manager over the course of her employment.

The FWC was of the view that the Employer’s process for dealing with the workplace complaints and its performance management of the employee could amount to bullying behaviour.

The FWC considered that the Employer had formed the view, at least from January 2021, that the employee was the cause of the complaints. As a result, it failed to follow its own Performance Management Policy which required a structured process based on interviews, feedback and goal setting.

According to the FWC, the Regional Manager’s email in January 2021 and the Employer’s failure to consider the employee’s explanations for her behaviour in March 2021 was evidence that the Employer had engaged in a “course of conduct” which was aimed at terminating her employment and this could be found to be unreasonable management action.

Ultimately, the FWC declined to make stop bullying orders as it was not satisfied that there was any risk that the employee would continue to be bullied at work while she continued to be certified unfit for work.

However, the FWC warned that if the employee were to return to work under the supervision of the Regional Manager and the Employer continued to act contrary to its Performance Management Policy, this may be found to constitute a repetition of unreasonable management action and therefore bullying conduct.

Lessons for employers

If management action is not reasonable and/or carried out in a reasonable manner, it may constitute bullying behaviour under the FW Act.

Employers should ensure that employees and managers understand what constitutes bullying and that complaints are handled in a reasonable manner and in accordance with reasonable complaint handling procedures.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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